Andhra Pradesh High Court - Amravati
Guraja Gangadhara Rao, vs Thotakura Sambasiva Rao, on 19 December, 2024
APHC010024822011
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
THURSDAY ,THE NINETEENTH DAY OF DECEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 1331/2011
Between:
Guraja Gangadhara Rao, and Others ...APPELLANT(S)
AND
Thotakura Sambasiva Rao and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. GANTA PRASAD
Counsel for the Respondent(S):
1. THOTA SUNEETHA
The Court made the following:
VENUTHURUMALLI GOPALA KRISHNA RAO,J
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
Second Appeal No.1331 of 2011
Judgment:
This Second Appeal is filed aggrieved against the Judgment and
decree in A.S.No.69 of 2008 on the file of VII Additional District &
Sessions Judge (Fast Track Court), Vijayawada, dated 03.09.2011,
confirming the Judgment and decree in O.S.No.926 of 2003 on the file of
III Additional Senior Civil Judge, Vijayawada, dated 12.03.2008.
2. The appellants 1 and 2 herein are the defendants 2 and 3 and
the 1st respondent herein is the plaintiff and 2nd respondent herein is the 1st
defendant in the O.S.No.926 of 2003 on the file of III Additional Senior
Civil Judge, Vijayawada. It is to be noted here that the 2nd appellant died
during the pendency of this appeal, as such, the appellants 3 to 5 are
brought on record as legal representatives of the deceased 2nd appellant.
3. The plaintiff initiated action in O.S.No.926 of 2003 on the file of III
Additional Senior Civil Judge, Vijayawada, with a prayer for partition of the
plaint schedule property into two equal shares and allot one such share to the
plaintiff and for costs.
4. The learned III Additional Senior Civil Judge, Vijayawada,
preliminarily decreed the suit by awarding one half share to the plaintiff. Felt
aggrieved of the same, the unsuccessful defendants 2 and 3 in the above said
suit filed the aforesaid appeal before the first appellate Court. The learned VII
Additional District & Sessions Judge (Fast Track Court), Vijayawada,
dismissed the first appeal by confirming the judgment and decree passed by
the trial Court. Aggrieved thereby, the unsuccessful defendants 2 and
3/appellants approached this Court by way of second appeal.
5. For the sake of convenience, both parties in the appeal will be
referred to as they are arrayed in the original suit.
6. The case of the plaintiff, in brief, as set out in the plaint averments in
O.S.No.926 of 2003, is as follows:
(i) The suit was originally filed against defendants 1 and 2 on the ground
that 1st defendant i.e., the father of the plaintiff got Ac.0-79 ½ cents of land as
depicted in the plaint schedule in partition with his brothers consequent to the
death of his father Thotakura Gopalam. Originally, the said Gopalam
purchased Ac.5-00 cents of land under a registered sale deed, dated
27.05.1939 bearing Doc.No.1363 of 1939 and he was in possession and
enjoyment of the said land till his death. He died intestate leaving 1st
defendant and other five sons. In the family partition among the sons of
Gopalam, the 1st defendant got Ac.0-79 ½ cents towards his share and as
such, it has become ancestral property of the 1st defendant and the plaintiff.
While so, the plaintiff could know the 1st defendant in a drunken state and
unsound mind executed a document in favour of 2nd defendant without having
right over the plaint schedule property and for no consideration.
(ii) The 3rd defendant i.e., wife of 2nd defendant was impleaded as a
party to the suit proceedings and the plaint was amended by amending other
pleadings that 1st defendant executed a registered sale deed, dated
16.03.1989 in the Sub-Registrar Office at Vijayawada in favour of 3rd
defendant alienating the entire plaint schedule property and the plaintiff could
know the said fact on 28.07.2005 and the said sale is invalid, plaintiff
requested the 3rd defendant for partition of the plaint schedule property and
defendants 1 and 3 did not cooperate and as such he got issued legal notice,
dated 28.10.2003. The defendants received the said notice and kept quite.
7. The 1st defendant filed written statement denying the execution of
sale deed in favour of the 3rd defendant much less the sale deed, dated
16.03.1989. He affirmed the averments of the plaint that the plaint schedule
property is ancestral property and he is ready for partition of the plaint
schedule property.
8. The 2nd defendant filed written statement by admitting the purchase
of Ac.5-00 cents of land by T. Gopalam under a registered sale deed, dated
27.05.1939 and after his death, his sons including 1st defendant partitioned
the said property and the plaint schedule property for an extent of Ac.0-79 ½
cents had fallen to the share of 1st defendant. He further contended that the 1st
defendant executed document in a sound disposing state of mind and having
capacity to execute the said document and the plaint schedule property is the
self acquired property of 1st defendant. He further contended that the suit is
barred by limitation.
9. The 3rd defendant filed written statement by admitting the purchase of
Ac.5-00 cents of land by T. Gopalam under a registered sale deed, dated
27.05.1939 and after his death, his sons including 1st defendant partitioned
the said property and the plaint schedule property for an extent of Ac.0-79 ½
cents had fallen to the share of 1st defendant. She further contended that the
1st defendant acted as a guardian of the plaintiff and sold away the plaint
schedule property under an agreement of sale, dated 11.12.1984 for
Rs.24,000/- by receiving Rs.23,000/- and by executing an agreement on the
even date to discharge his debts and thereafter he executed a registered sale
deed, dated 16.03.1989 by receiving balance sale consideration of Rs.1,000/-.
The possession was delivered to the 3rd defendant under an agreement of
sale dated, 11.12.1984 and there is no cause of action to file the suit and that
the suit is barred by limitation.
10. On the basis of above pleadings, the learned III Additional Senior
Civil Judge, Vijayawada, framed the following issues for trial:
(1) Whether the plaint schedule property was not the joint family
property of plaintiff and 1st defendant?
(2) Whether the suit is barred by limitation?
(3) Whether the 2nd defendant is a bonafide purchaser for valuable
consideration?
(4) Whether the plaintiff is entitled for partition as prayed for?
(5) To what relief ?
11. During the course of trial in the trial Court, on behalf of the plaintiff,
P.W.1 and P.W.2 were examined and Exs.A-1 to A-11 were marked. On
behalf of the defendants 2 and 3, D.W.1 to D.W.3 were examined and Exs.B-1
to B-14 were marked.
12. The learned III Additional Senior Civil Judge, Vijayawada, after
conclusion of trial, on hearing the arguments of both sides and on
consideration of oral and documentary evidence on record, preliminarily
decreed the suit. Felt aggrieved thereby, the unsuccessful defendants 2 and 3
filed the appeal suit in A.S.No.69 of 2008 on the file of VII Additional District &
Sessions Judge (Fast Track Court), Vijayawada, wherein, the following points
came up for consideration.
(1) Whether the plaint schedule property is the joint family property
of plaintiff and 1st defendant?
(2) Whether the 1st defendant sold away the plaint schedule
property to the 3rd defendant under a registered sale deed,
dated 16.03.1989?
(3) Whether the 1st defendant has got right to alienate the entire
plaint schedule property to 3rd defendant?
(4) Whether the suit is barred by limitation?
(5) Whether the court fee paid is correct?
(6) Whether the plaintiff is entitled for partition as prayed for?
13. The learned VII Additional District & Sessions Judge (Fast Track
Court), Vijayawada, i.e., the first appellate Judge, after hearing the arguments,
answered the points, as above, against the defendants 2 and 3/appellants and
in favour of the plaintiff/1st respondent and dismissed the appeal filed by the
defendants 2 and 3. Felt aggrieved of the same, the unsuccessful defendants
2 and 3 in O.S.No.926 of 2003 filed the present second appeal before this
Court.
14. When the matter was before the composite High Court of Andhra
Pradesh, Hyderabad, the following substantial questions of law were framed,
on 18.11.2011:
(i) Whether the properties which devolve upon a heir mentioned in Class-I of
the schedule under Section 8 constitute his absolute properties and whether
his son has any right by birth in such properties?
(ii) Whether the property got by the 1st defendant on the death of his father, T.
Gopalam on 22.10.1964 becomes his separate property and whether the son
who was born in 1970 has any right to claim partition of that property?
(iii) Whether Section 6 of the Hindu Succession Act or Section 8 is applicable
to the facts of the case and whether the courts below erred in holding that the
property held by the 1st defendant after the death of his father is ancestral
property?
15. In addition to the above substantial questions of law framed by the
composite High Court of Andhra Pradesh, Hyderabad, during the course of
hearing of both sides, on 04.11.2024, the following substantial questions of
law are framed for consideration:
(i) Whether the suit claim for partition is within limitation in view of Article 110
of the Limitation Act?
(ii) Whether the suit is liable to be dismissed for non-joinder of necessary
parties?
16. Heard Sri Ganta Prasad, learned counsel for the appellants and
heard Sri V.S.R. Anjaneyulu, learned Senior Counsel, on behalf of Smt. Thota
Suneetha, learned counsel appearing for the 1st respondent.
17. Learned counsel for the appellants would contend that both the
Courts below erred in decreeing the suit filed by the plaintiff. He would further
contend that the suit is barred by limitation and he would further contend that
Section 8 of the Hindu Succession Act is applicable to the present facts of the
case and therefore the decree and judgment passed by both the Courts below
are liable to be set aside and the second appeal may be allowed.
18. Learned Senior Counsel appearing on behalf of the 1st respondent/
plaintiff would contend that the alleged sale deed and alleged gift deed are
non est in the eye of law and question of seeking cancellation of the aforesaid
documents does not arise. He would further contend that the suit is filed
within a period of limitation. He would further contend that Section 6 of the
Hindu Succession Act is applicable to the present facts of the case. He would
further contend that there are no substantial questions of law in the second
appeal. With these submissions, the learned Senior Counsel appearing for the
1st respondent/plaintiff in the second appeal would contend that the second
appeal is liable to be dismissed.
19. POINT:
Whether the suit claim for partition is within a period of limitation
in view of Article 110 of the Limitation Act?
Learned counsel for the appellants would contend that the suit filed by
the plaintiff/son is in the year 2003 for seeking the relief of partition of the
plaint schedule property and the same cannot be maintained when the plaintiff
attained majority in the year 1988 and the suit is filed in the year 2003 and that
therefore the suit is barred by limitation. Learned counsel for the 1st
respondent would contend that the suit is not barred by limitation.
20. As seen from the material on record as per the evidence of P.W.1/
plaintiff he has no knowledge about Ex.B.2 sale transaction and Ex.B.3 gift
transaction said to have been executed by 2nd defendant in favour of his
daughter. It is the specific case of the plaintiff that the suit schedule property
is ancestral property. It is not in dispute that the grand-father of plaintiff by
name T. Gopalam purchased an extent of Ac.5-00 cents under a registered
sale deed, dated 27.05.1939 and while he was in possession and enjoyment,
he died intestate by leaving six sons including the 1st defendant and later in
the family partition between six brothers, the 1st defendant got Ac.0-79 ½
cents. It was pleaded by the 2nd defendant in the written statement the father
of 1st defendant has got self-acquired property. The property devolved to the
1st defendant and his brothers. He further pleaded as such the plaint
schedule property is not ancestral property and the plaintiff intended to obtain
a wrongful gain filed the false suit against the 2nd defendant. He further
pleaded that the plaint schedule property is not ancestral property and it is
self-acquired property of 1st defendant. There is no whisper in the written
statement of 2nd defendant in the suit that his wife purchased the plaint
schedule property from 1st defendant under a registered sale deed, dated
16.03.1989. There is no whisper in the written statement about the alleged
agreement of sale under Ex.B.1, dated 11.12.1981 which was obtained by the
wife of 2nd defendant from the 1st defendant. The bald plea taken by the 2nd
defendant as stated supra in the written statement is highly absurd and
unknown to law. The 1st defendant has got the plaint schedule property from
his father by way of ancestral in a family partition among 1st defendant and his
other five brothers. Therefore, undoubtedly, it is an ancestral property and
plaintiff is having half share in the plaint schedule properties. As per the case
of the 3rd defendant the plaint schedule property is ancestral property. D.W.2
admits in her evidence in cross examination itself that the plaint schedule
property is ancestral property of the 1st defendant.
21. Learned counsel for the appellants placed reliance in the case of
Jambula Ganesh Reddy vs. Jambula Anjan Reddy and others1.
The aforesaid case law relates to cancellation of sale deeds. Here the
suit is filed for claiming the relief of partition of the plaint schedule property.
22. It is the specific case of the plaintiff that the defendants 2 and 3
obtained a sale deed fraudulently and obtained the signatures of the 1st
1
2020 (0) Supreme (Telangana) 779
defendant on the sale deed and the 1st defendant has no saleable interest in
the plaint schedule property. The specific case of the plaintiff is that he is not
aware of Ex.B.2 sale transaction. The specific case of the plaintiff is that after
coming to know about the sale transaction and after knowing the sale
transaction in favour of 3rd defendant, the 3rd defendant added as a party to
the suit proceedings. Moreover, there is no whisper in the written statement of
2nd defendant itself that his wife purchased the plaint schedule property under
a registered sale deed much prior to the institution of the suit. As noticed
supra, the suit is not filed for cancellation of sale deed. It is a suit for partition
of the plaint schedule property. The contention of the plaintiff is that the plaint
schedule property is undivided ancestral property and he is the only son of the
1st defendant and the 1st defendant is not having any daughters. The own
documents filed by the defendants 2 and 3 coupled with the documentary
evidence produced by them and coupled with their admissions clearly goes to
show that plaint schedule property is ancestral property and a share of co-
parcener was sold away without his consent. Therefore, the sale deed is non
est and meaningless transaction. The 1st defendant has no right to alienate
the total property to the 3rd defendant, at best, the 1st defendant can alienate
his share only to the 3rd defendant. As stated supra, the suit is filed for relief
of partition of the joint family property. Furthermore, the 1st defendant i.e.,
father of plaintiff is alive by the date of institution of the suit. The 1 st defendant
asserts in the written statement itself that the plaint schedule property is
ancestral property and the plaintiff is having half share in the plaint schedule
property. Therefore, I am unable to accept the contention of the learned
counsel for the appellants that the suit is barred by limitation. Accordingly, the
point is answered against the appellants.
23. The substantial questions of law (i) to (iii):
(i) Whether the properties which devolve upon a heir mentioned in
Class-I of the schedule under Section 8 constitute his absolute
properties and whether his son has any right by birth in such
properties?
(ii) Whether the property got by the 1st defendant on the death of his
father, T. Gopalam on 22.10.1964 becomes his separate property and
whether the son who was born in 1970 has any right to claim partition of
that property?
(iii) Whether Section 6 of the Hindu Succession Act or Section 8 is
applicable to the facts of the case and whether the courts below erred in
holding that the property held by the 1st defendant after the death of his
father is ancestral property?
The undisputed facts are grand-father of the plaintiff i.e., father of 1st
defendant by name T. Gopalam purchased Ac.5-00 cents of land under a
registered sale deed, dated 27.05.1939 under original of Ex.A.4 and he was in
possession and enjoyment till his death and he died intestate leaving behind
him, the 1st defendant and other five sons and in the family partition, all the
children of Gopalam i.e., six sons including 1st defendant partitioned the total
property of Ac.5-00 cents of land and in the family partition, the 1st defendant
got total Ac.0-79 ½ cents of land i.e., plaint schedule property. Therefore,
certainly, it is ancestral property and the plaint schedule property was
inherited by the 1st defendant from his father. Furthermore, the property was
devolved to the 1st defendant after the death of Gopalam. The said Gopalam
died intestate. After the death of Gopalam, the 1st defendant got the plaint
schedule property in a family partition among his brothers and the plaintiff is
born in the year 1970. Therefore, the plaintiff got half share in the plaint
schedule property by birth and plaintiff and 1st defendant are not yet
separated, the 1st defendant was alive by the date of filing of the suit.
Furthermore, the 3rd defendant i.e., D.W.2 admits in her evidence in cross
examination itself that the plaint schedule property is ancestral property.
D.W.2 i.e., 3rd defendant admits that the 1st defendant sold away the plaint
schedule property to her under a registered sale deed, dated 16.03.1989.
Furthermore, D.W.1 i.e., 2nd defendant admits in his evidence in cross
examination that the 1st defendant sold away the plaint schedule property to
his wife i.e., 3rd defendant under a registered sale deed and his wife has
become absolute owner of the plaint schedule property. But there is no
whisper in the written statement filed by the 2nd defendant that his wife has
been in possession ever since 11.12.1984 and his wife purchased plaint
schedule property from the 1st defendant. In cross examination D.W.1 admits
that his wife gave an advance of Rs.23,000/- to the 1st defendant, as he
agreed to sell for Rs.24,000/- and she was inducted into possession in the
year 1984. It is the contention of the defendants 2 and 3 that the 3 rd defendant
purchased the plaint schedule property under Ex.B.1 agreement of sale and in
Ex.B.1 it was recited that the total consideration of Rs.24,000/- was not
received and the consideration of Rs.23,000/- was only received by the 1st
defendant and the remaining Rs.1,000/- has to be paid on the date of sale
deed and the possession was given to the 3rd defendant. Furthermore, D.W.1
admits that he did not file agreement of sale. The 3rd defendant i.e., D.W.2
stated in her evidence that the 1st defendant sold away the plaint schedule
property to her for Rs.24,000/- and she paid Rs.23,000/- to discharge family
debts of the 1st defendant totaling Rs.17,500/- to the debtors and purchased
goats for Rs.5,000/- from Itam Raju for family maintenance and 1st defendant
in turn executed a possessory agreement of sale on his behalf and on behalf
of his son i.e., plaintiff. In cross examination when elicited she admits that she
paid advance money of sale consideration to 1st defendant and she did not
discharge herself the debts of the 1st defendant. Therefore, the alleged
Ex.B.1 is not at all corroborated by the evidence of D.W.2.
Furthermore, as stated supra, the plaint schedule property is ancestral
property and the 1st defendant alienated total plaint schedule property without
the consent of the plaintiff under the alleged registered sale deed. As noticed
supra, at best, the 1st defendant can alienate his share in the plaint schedule
property and he cannot alienate the share of the plaintiff. Furthermore, the
documentary evidence placed by the plaintiff clearly goes to show that by the
date of alleged sale deed, dated 16.03.1989, the plaintiff is a major, by
showing the plaintiff as a minor in the sale deed, the 1st defendant executed
the alleged sale deed in favour of 3rd defendant. The 1st defendant is alive by
the date of filing of the suit. He also filed a written statement. He admits that
the plaint schedule property is the ancestral property and his son i.e., plaintiff
is having half share in the plaint schedule property. Furthermore, in the sale
deed itself it was mentioned the source of acquisition of the property by the 1st
defendant is ancestral property.
24. Learned counsel for the appellants would contend that the 3rd
defendant also filed agreement of sale which is marked as Ex.B.1. As noticed
supra, the own admissions of the 3rd defendant i.e., alleged purchaser in her
evidence in cross examination is not at all supported with the averments in the
chief affidavit filed by the 3rd defendant i.e., D.W.2.
25. Learned counsel for the appellants placed reliance in Anjeet Taneja
vs. Ravinder Kumar Taneja and another2 wherein it was held that:
"The date of the death of the grand-father of the appellant is not
disclosed in the pleading, but is concededly after the Hindu Succession
Act, 1956 was promulgated. The admission by the respondent No.1 that
the property at Jangpura was inherited by him and his brother n the
death of their father and was sold in the year 1989, would thus prima
facie be of no help to the appellant because it is settled law that intestate
succession by Hindus after 1956, when the Hindu Succession Act, 1956
was promulgated, would be under the said Succession Act and if a son
inherits a property from his father it would not partake ancestral
character vis-à-vis his son".
Learned counsel for the appellants placed another reliance in Prasanna
Kumar Ram vs. Nabakishore Ram and others3 wherein it is held that:
14. Thus, the express words of Section 8 of the Hindu Succession Act,
1956 cannot be ignored and the same must prevail. It is necessary to
bear in mind the Preamble of Hindu Succession Act, 1956 which states
2
2016 0 Supreme (Del) 274
3
2013 0 Supreme (Ori) 104
that it was an Act to amend and codify the law relating to intestate
succession among the Hindus, with that background the express
language which excludes son's son but include son of a predeceased
son cannot be ignored and their Lordship's of the Hon'ble Apex Court
accepted the views of the Allahabad High Court, Full Bench view of the
Madras High Court, Madhya Pradesh High Court and Andhra Pradesh
High Court, but did not agree with the view of the Gujarat High Court in
the matter.
16. It is needless to mention here that Section 8 of the Hindu Succession
Act, 1956 confers the right of succession only on the son of a
predeceased son and not on a grandson when his father is living at the
time of succession and he does not get anything on the ground that he
gets a right by birth.
Learned counsel for the appellants placed reliance in Nirmala vs. A.
Kasthuri & others4 wherein it was held as follows:
"When the self-acquired property of a father devolves on his son, it
becomes under Shastric Hindu law, Joint family property in the hands of
his son, so that his son/s entitled to a right by birth. This law is changed
as a result of Section 8 of Hindu Succession Act 1956. Property which a
son inherits from his father's father becomes only his self acquired
property. He inherits along with his brothers, sisters and mother also."
In the case on hand, admittedly, the plaint schedule property is not self-
acquired property of the father i.e., 1st defendant. As stated supra, the plaint
schedule property is ancestral property. Originally, the grand-father of the
plaintiff purchased total Ac.5-00 cents of land under a registered sale deed a
bay back in the year 1939 and the grand-father of the plaintiff died intestate on
22.10.1964 i.e., subsequent to the commencement of the Hindu Succession
Act, 1965 by leaving the 1st defendant and other five sons. The fact remains
the father of the plaintiff i.e., 1st defendant and his other five brothers
4
2022 0 Supreme (AP) 1081
partitioned Ac.5-00 cents of land which was acquired from their father and in
the family partition, the 1st defendant got the plaint schedule property towards
his share, therefore, it is not a self-acquired property of the father of plaintiff.
After the birth of the plaintiff in the year 1970, the plaintiff got half share in the
plaint schedule property by birth itself. By ignoring the share of son i.e.,
plaintiff, the 1st defendant alienated the total plaint schedule property to the 3rd
defendant under a registered sale deed, dated 16.03.1989, though the plaintiff
is a major by the date of alleged sale deed, the father alienated the plaint
schedule property to the 3rd defendant by showing the plaintiff as a minor.
Learned counsel for the appellants would contend that the sale deed is
preceded by Ex.B.1 agreement of sale, dated 11.12.1984. The law is well
settled that the transfer of an immovable property has to be affected by way of
registered sale deed only and by virtue of agreement of sale, the rights and
title in the plaint schedule property will not be transferred to the 3rd defendant.
Therefore, the facts and circumstances in the aforesaid case laws are different
to the instant case.
26. Learned counsel for the appellants placed reliance in Amarjeet
Singh @ Rinku vs. Surjeet Singh & others5.
As stated supra, the plaint schedule property herein is not self-acquired
property of the 1st defendant.
27. Learned counsel for the appellants placed another reliance in
Commissioner of Wealth Tax, Kanpur and others vs. Chander Sen and
others6 wherein the Apex Court held as follows:
21. It is necessary to bear in mind the Preamble to the Hindu Succession
Act, 1956. The Preamble states that it was an Act to amend and codify
the law relating to intestate succession among Hindus.
5
2016 228 DLT 552
6
AIR 1986 SC 1753
22. In view of the preamble to the Act, i.e., that to modify where
necessary and to codify the law, in our opinion it is not possible when
Schedule indicates heirs in class I and only includes son and does not
include son's son but does include son of a predeceased son, to say that
when son inherits the property in the situation contemplated by Section 8
he takes it as karta of his own undivided family. The Gujarat High Court's
view noted above, if accepted, would mean that though the son of a
predeceased son and not the son of a son who is intended to be
excluded under Section 8 to inherit, the latter would by applying the old
Hindu law get a right by birth of the said property contrary to the scheme
outlined in Section 8. Furthermore as noted by the Andhra Pradesh High
Court that the Act makes it clear by Section 4 that one should look to the
Act in case of doubt and not to the pre-existing Hindu law.
It would be difficult to hold today the property which devolved on a Hindu
under Section 8 of the Hindu Succession would be HUF in his hand vis-
a-vis his own son; that would amount to creating two classes among the
heirs mentioned in class I, the male heirs in whose hands it will be joint
Hindu family property and vis-a-vis son and female heirs with respect to
whom no such concept could be applied or contemplated. It may be
mentioned that heirs in class I of Schedule under Section 8 of the Act
included widow, mother, daughter of predeceased son etc.
In the case on hand the plaint schedule property was got by the 1st
defendant in a family partition among his brothers and till the birth of the
plaintiff he was sole surviving co-parcener, but the moment the plaintiff is
born, he got share in the father's property and became co-parcener. It is also
made it clear that the property in the hands of 1st defendant allotted to him in a
family partition was a separate property till the birth of the plaintiff and
therefore after the birth of the plaintiff, it is ancestral property and the plaintiff
is having half share in the plaint schedule property since the 1st defendant is
having only son and the 1st defendant was not having any daughters and
therefore by birth by the year 1970, the plaintiff got half share in the plaint
schedule property and 1st defendant is having half share in the plaint schedule
property. As stated supra, originally, the plaint schedule property was
purchased by the grand-father of plaintiff and grand-father of plaintiff died
subsequent to the commencement of the Hindu Succession Act, 1956.
Furthermore, no evidence is produced by the appellants to show that for legal
necessity the 1st defendant alienated the property to the 3rd defendant under a
registered sale deed. As stated supra, the documentary evidence produced by
the plaintiff clearly goes to show by the date of alleged sale deed, the plaintiff
is a major but by showing the plaintiff as a minor in the sale deed, the father
alienated the plaint schedule property to the 3rd defendant.
28. I am of the considered view that the co-parcenary property means
the property which consists of ancestral property and a co-parcener would
mean a person who shares equally with others in inheritance in the estate of
common ancestor. The co-parcenary is a narrower body than the joint Hindu
family and before commencement of the Hindu Succession (Amendment) Act,
2005 only male members of the family used to acquire by birth interest in the
co-parcenary property. A co-parcener has no definite share in the co-
parcenary property, but he has undivided interest in it and one has to bear in
mind that it enlarges by death and diminishes by birth in the family. Therefore,
by virtue of the partition in between 1st defendant and his brothers, the plaint
schedule property is a separate property of the 1st defendant till the birth of the
son i.e., plaintiff, subsequent to born of the son i.e., plaintiff by the year 1970,
the plaint schedule property is not a self-acquired property of the 1st
defendant/father and the alienation made before the birth by the father cannot
be questioned but a moment a son is born, the property becomes a co-
parcenary property and the son would acquire interest in that and become a
co-parcener. In the case on hand, father of 1st defendant Gopalam died
intestate on 22.10.1964 i.e., subsequent to the commencement of the Hindu
Succession Act, 1956 and the plaintiff born in the year 1970, till the birth of the
plaintiff, the plaint schedule property is a separate property of the 1 st
defendant. After the plaintiff born in the year 1970, it becomes an ancestral
property.
29. It is also well settled that property inherited by a male Hindu from his
father, father's father or father's father's father is an ancestral property. The
essential feature of ancestral property according to Mithakshra law is that the
sons, grand-sons and great grand-sons of the person who inherits it acquire
interest and the rights attached to such property at the moment of their birth.
The share which a co-parcener obtains on partition of property is ancestral
property. As stated supra, the 1st defendant was having only son i.e., plaintiff
and he was not having any daughters, therefore, subsequent to the birth of
plaintiff by the year 1970, the plaintiff has got half share in the plaint schedule
property.
30. The law is well settled by the Apex Court in Sheela Devi and
others vs. Lal Chand and another7 wherein it was held that;
"The principle of law applicable in this case is that so long a property
remains in the hands of a single person, the same was to be treated as a
separate property and thus, would be entitled to dispose of the
coparcenary property as the same were his separate property, but, if a
son is subsequently born to him or adopted by him, the alienation
whether it is by way of sale, mortgage or gift, will nevertheless stand, for
a son cannot object to alienations so made by his father before he was
born or begotten. But, once a son is born, it becomes a coparcenary
property and he would acquire an interest therein."
The Apex Court further reiterated in the aforesaid case law as follows:
"The Act indisputably would prevail over the old Hindu Law. We may
notice that the Parliament, with a view to confer right upon the female
heirs, even in relation to the joint family property, enacted Hindu
Succession Act, 2005. Such a provision was enacted as far back in 1987
7
2007 (2) ALT 52 (SC)
by the State of Andhra Pradesh. The succession having opened in 1989,
evidently, the provisions of Amendment Act, 2005 would have no
application. Sub-section (1) of Section 6 of the Act governs the law
relating to succession on the death of a coparcener in the event the heirs
are only male descendants. But, proviso appended to Sub-section (1) of
Section 6 of the Act creates an exception. First son of Babu Lal, viz., Lal
Chand, was, thus, a coparcener. Section 6 is exception to the general
rules. It was, therefore, obligatory on the part of the Plaintiffs-
Respondents to show that apart from Lal Chand, Sohan Lal will also
derive the benefit thereof. So far as the Second son Sohan Lal is
concerned, no evidence has been brought on records to show that he
was born prior to coming into force of Hindu Succession Act, 1956."
31. As stated supra, the plaint schedule property was got by 1st
defendant in a family partition among his brothers till the birth of plaintiff, he
was sole surviving coparcener but the moment the plaintiff is born, the plaintiff
got half share in the father's property and became coparcener. The property in
the hands of 1st defendant allotted to him in a family partition was a separate
property till the birth of son/plaintiff and therefore, after the birth of plaintiff in
the year 1970, it is an ancestral property and the plaintiff has got half share in
the plaint schedule property by birth. For the aforesaid reasons, I am of the
considered view that Section 6 of the Hindu Succession Act is applicable to
the present case on hand and Section 8 of the Hindu Succession Act is not at
all applicable to the present case. Therefore, I am accepting the finding
arrived at by the learned 1st Appellate Judge that the character of the
ancestral property is not at all taken away by where being a partition in the
family of 1st defendant and his brothers, since the plaintiff and 1st defendant
have not partitioned the joint family property. By giving cogent reasons the
learned 1st Appellate Judge rightly held that Section 6 of the Hindu
Succession Act applicable to the present facts of the case.
Accordingly, the substantial questions of law (i) to (iii) are answered
against the appellants.
32. Additional substantial question of law:
(ii) Whether the suit is liable to be dismissed for non-joinder of
necessary parties?
Learned counsel for the appellants would contend that the Trial Court
and 1st Appellate Court failed to consider Ex.B.3 which establishes the right of
the daughter of the 3rd defendant in the schedule property and subsequently
the 3rd defendant gifted Ac.0-40 cents of land from out Ac.0-79 ½ of cents to
her daughter under a registered gift deed and the 3rd defendant was not
shown as a party to the suit and that the suit is not at all maintainable.
33. Admittedly, in the case on hand, the 1st defendant has no right to
alienate the entire plaint schedule property to the 3rd defendant, at best, the 1st
defendant can alienate his half share in the plaint schedule property. Learned
counsel for respondent/plaintiff placed reliance in C.R. Ramaswami
Ayyangar (Minor) vs. C.S. Rangachariar and others8 wherein it was held
that;
"With regard to the reasoning of Krishnaswami Aiyar, J., based on
Section 1, Clause 13 of the Limitation Act of 1859, it falls to be observed
that the wording of this clause was changed by the Limitation Act of 1871
and that the change has been maintained in the Acts of 1877 and 1908.
The corresponding Article to Section 1, Clause 13 of the Act of 1859 in
the two later acts is Article 127, which provides a period of limitation of
twelve years in respect of a suit by a person excluded from joint family
property to enforce a right to share therein. The article now clearly only
refers to a suit by a person who is excluded from joint family property.
Krishnaswami Aiyar, J., did not think that this amendment made any
difference in the interpretation of the article, but in my opinion the
alteration of the wording certainly robbed the argument of any force it
might have had. As altered its applicability is expressly limited to a case
8
AIR 1940 Madras 113
where the member suing is not in joint possession. If the words of
Section 7(iv)(b) are to be given their ordinary meaning they cannot apply
to a suit for partition by a member of a joint family who is still in joint
possession. It follows that I consider that the majority decision in
Rangiah Chetty v. Subramania Chetty (1910) 21 M.L.J. 21 is erroneous
and should be overruled. In these circumstances the only provision in the
Court-Fees Act which is applicable is Article 17B of Schedule II and in
stamping his general relief under this provision the plaintiff acted rightly."
In the case on hand, the suit is filed for relief of partition of the plaint
schedule property. As stated supra, the plaintiff is having right of half share in
the plaint schedule property by birth by the year 1970 and Section 6 of the
Hindu Succession Act is applicable to the present facts of the case.
Therefore, the alleged sale deed in favour of 3rd defendant said to have been
executed by 1st defendant and gift deed said to have been executed by 3rd
defendant in favour of her daughter for Ac.0-40 cents out of Ac.0-79 ½ cents
are non est and there is no need to seek cancellation of that document and
there is no need to add the daughter of 3rd defendant as a party to the suit.
The suit is filed by the plaintiff for seeking relief of partition of the undivided
ancestral joint family property. The admitted case of both parties are plaintiff
is the only son to the 1st defendant and 1st defendant was not having any
daughters and the 1st defendant got total plaint schedule property for an
extent of Ac.0-79 ½ cents in a family partition among 1st defendant and his
brothers and father of the 1st defendant died in the year 1964 i.e., subsequent
to the commencement of Hindu Succession Act, 1956 and the plaintiff is born
in the year 1970. Therefore, the plaintiff is having half share in the plaint
schedule property by birth by the year 1970. As noticed supra, Section 6 of
the Hindu Succession Act is applicable to the present facts of the case.
Therefore, the present suit for partition is maintainable. Accordingly, additional
substantial question of law is answered against the appellants.
34. Having regard to the overall facts and circumstances of the case, I
am of the considered view that the learned 1st appellate Judge rightly
appreciated the evidence and legal principles and the learned 1st appellate
Judge rightly dismissed the first appeal. Therefore, the findings of both the
Courts below are in accordance with law and there are no merits in the
present appeal and therefore, the appeal is liable to be dismissed.
In the result, the second appeal is dismissed. There is no order as to
cots. Pending applications, if any, shall stand closed.
__________________________
V. GOPALA KRISHNA RAO, J.
Dt.19.12.2024. PGR